United States v. Ionel Muresanu, 951 F.3d 833

Background

In 2017–18 Muresanu participated in a multistate ATM skimming scheme that used skimmers and pinhole cameras to capture card data and PINs; he received counterfeit cards and shared proceeds with a co-conspirator.
Arrested in Wisconsin in May 2018 with 100 counterfeit cards; gave written and recorded confessions.
Grand jury indicted four counts: possession of 15+ counterfeit access devices (18 U.S.C. §1029(a)(3)) and three counts charging "attempted" aggravated identity theft (18 U.S.C. §1028A(a)(1)), but §1028A does not criminalize attempts.
Defense did not file a pretrial Rule 12(b)(3) motion challenging the defective indictment; at trial defense moved for acquittal on the identity‑theft counts after the government rested—motion denied as waived.
The district judge removed the "attempt" language from the jury instructions and instructed on completed aggravated identity theft (a substantive change from the indictment); jury convicted on all counts.
Posttrial, court vacated neither convictions nor sentence on count one (possession); sentenced to 34 months on count one plus statutory consecutive 24‑month terms on each identity‑theft count (ordered concurrent to each other), total 58 months. On appeal court affirmed count one, vacated counts two–four, and remanded for resentencing on count one alone.

Issues

Issue	Muresanu's Argument	Government's Argument	Held
Whether indictment's failure to charge a cognizable federal offense (alleging "attempt" to commit §1028A) deprived the court of subject‑matter jurisdiction	Defect (charging a noncrime) is jurisdictional and cannot be waived	Defect is nonjurisdictional and must be raised pretrial under Rule 12(b)(3) or is waivable	Not jurisdictional. Defendant waived the challenge by not moving under Rule 12(b)(3); Cotton governs.
Whether removing "attempt" from jury instructions and instructing on completed aggravated identity theft violated Fifth Amendment grand‑jury right (convicting on unindicted offense)	Instruction reformulated the charges into offenses not returned by the grand jury, violating Stirone and requiring reversal	The change was a permissible variance or harmless; alternately, defendant waived the challenge by strategy	Modification was an impermissible alteration that convicted defendant of offenses not charged by the grand jury; Stirone error is per se prejudicial—vacated counts two–four.
Whether sentencing enhancements on count one (sophisticated means, supervisory role, use of minor) were improperly applied	Challenges to each enhancement; argued not architect, was minor participant, and partly a minor himself	Court relied on evidence of skimmers, coordination, supervision of cousin, and that defendant was 18 at arrest/supervision	Enhancements affirmed: sophisticated means, supervisory role, and use of a minor properly applied; sentence on count one affirmed.

Key Cases Cited

United States v. Cotton, 535 U.S. 625 (2002) (defects in an indictment do not deprive a court of jurisdiction)
Stirone v. United States, 361 U.S. 212 (1960) (convicting on charges not in the indictment is per se reversible)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase statutory penalty must be charged in indictment and proved to a jury)
Lamar v. United States, 240 U.S. 60 (1916) (indictment defects that negate an element go to merits, not jurisdiction)
United States v. Williams, 341 U.S. 58 (1951) (a court proceeds with jurisdiction even if indictment ultimately fails to state an offense)
United States v. Galiffa, 734 F.2d 306 (7th Cir. 1984) (altering an indictment without grand jury approval is reversible)
United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012) (reads Cotton to allow waiver even where indictment fails to state an offense)